Criminal Procedure Commons^™

Use Of Force Against Terrorist Bases: Introduction, Malvina Halberstam

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No abstract provided.

The Virtues Of A Procedural View Of Innocence--A Response To Professor Schwartz, Scott E. Sundby

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No abstract provided.

Are Twelve Heads Better Than One?, Phoebe C. Ellsworth

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Few advocates of the jury system would argue that the average juror is as competent a tribunal as the averagejudge. Whatever competence the jury has is a function of two of its attributes: its number and its interaction. The fact that a jury must be composed of at least six people,' with different backgrounds, experiences, and perspectives, provides some protection against decisions based on an idiosyncratic view of the facts. Not only must the jury include at least six people, but they must be chosen in a manner that conforms to the ideal of the jury as representative of community …

Capital Punishment: A Disputation, Peter Lushing

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The article critiques the use of capital punishment, arguing that it is morally flawed, ineffective as a deterrent, and disproportionately applied to marginalized groups. Through a dialogue between a judge and a clerk, it highlights the emotional and societal complexities surrounding the death penalty, ultimately advocating for its abolition in favor of life imprisonment and systemic reforms.

Duckworth V. Eagan: A Little-Noticed Miranda Case That May Cause Much Mischief, Yale Kamisar

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Professor Yale Kamisar, the country's foremost scholar of Miranda and police interrogation, presents an analysis and critique of the Supreme Court's latest interpretation of Miranda. In Duckworth, a 5-4 Court upheld the "if and when" language systematically used by the Hammond, Indiana, Police Department: "We have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to court." The real issue was whether the police effectively conveyed the substance of a vital part of Miranda: the right to have a lawyer appointed prior to any questioning. Professor Kamisar …

The Reasonable Doubt Rule And The Meaning Of Innocence, Scott E. Sundby

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No abstract provided.

Diagnosis Of The Current Code Of Criminal Procedure, Daniel H. Foote

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Approximately 35 years have passed since the current Code of Criminal Procedure went into effect, and today the manner in which that Code is interpreted and applied appears nearly stable. In truth, for most of the provisions and systems under the current Code about which there had been many questions of interpretation and application (e.g., interpretation of the provisions concerning hearsay evidence, discovery, exclusion of illegally-obtained evidence, and abuse of the authority to prosecute), some sort of conclusion (ichid no ketsuron) has been reached. In that sense, matters have "stabilized." However, in my view much more deep-seated problems remain unresolved. …

Summary Of Tokugawa Criminal Justice, Daniel H. Foote

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The summary set forth below is derived principally from the late Professor Yoshiro Hiramatsu's-comprehensive study of Tokugawa criminal justice. Hiramatsu's work focusses on the period from the promulgation of the Osadamegaki by the Shogun Yoshimune in 1742 through the end of the Tokugawa era in 1867. (As described by Professor Dan F. Henderson, Conciliation and Japanese Law, Tokugawa and Modern (1965), Vol. 1, at 7, fn. 26, the Osadamegaki, which consisted of two books, constituted "a compilation and rough codification of prior decrees and precedents", and "was the only such official attempt to systematize the law in the Tokugawa period." …

Problem Diskrecije U Americkoj Pravnoj Misli, Charles M. Yablon

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No abstract provided.

'Comparative Reprehensibility' And The Fourth Amendment Exclusionary Rule, Yale Kamisar

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It is not . . . easy to see what the shock-the-conscience test adds, or should be allowed to add, to the deterrent function of exclusionary rules. Where no deterrence of unconstitutional police behavior is possible, a decision to exclude probative evidence with the result that a criminal goes free to prey upon the public should shock the judicial conscience even more than admitting the evidence. So spoke Judge Robert H. Bork, concurring in a ruling that the fourth amendment exclusionary rule does not apply to foreign searches conducted exclusively by foreign officials. A short time thereafter, when an interviewer …

The Tax Reform Act Of 1986: A Response To Professor Yorio And His Vision Of The Future Of The Internal Revenue Code, Edward A. Zelinsky

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No abstract provided.

Loss Of Innocence: Eyewitness Identification And Proof Of Guilt, Samuel R. Gross

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It is no news that eyewitness identification in criminal cases is a problem; it is an old and famous problem. Judges and lawyers have long known that the identification of strangers is a chancy matter, and nearly a century of psychological research has confirmed this skeptical view. In 1967 the Supreme Court attempted to mitigate the problem by regulating the use of eyewitness identification evidence in criminal trials; since then it has retreated part way from that effort. Legal scholars have written a small library of books and articles on this problem, the courts' response to it, and various proposed …

Edward L. Barrett, Jr.: The Critic With 'That Quality Of Judiciousness Demanded Of The Court Itself', Yale Kamisar

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Barrett was as talented and as dedicated a law teacher as any of his distinguished (or soon-to-become-distinguished) contemporaries. But Barrett resisted the movement toward new rights in fields where none had existed before. At least, he was quite uneasy about the trend. To be sure, others in law teaching shared Barrett's concern that the clock was spinning too fast. Indeed, some others were quite vociferous about it.' But because his criticism was cerebral rather than emotional - because he fairly stated and fully explored the arguments urging the courts to increase their tempo in developing constitutional rights - Barrett was …

The Twelve-Person, Unanimous Jury: Does It Have More Than History To Recommend It?, Richard O. Lempert

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My focus today will be on the twelve-person unanimous jury and on the contrasts between such juries and six-person juries or twelve-person juries than can return verdicts by ten-two or nine-three votes. Until about fifteen years ago, it appeared that the sixth and seventh amendments required all federal juries to have twelve members who reached unanimous verdicts, and it appeared possible that the Supreme Court would force the states to conform to the federal standards. Instead, the court did almost the opposite. It sanctioned juries as small as size six in state criminal cases and federal civil cases, and it …

Prosecutorial Discretion In Japan: A Response, Daniel H. Foote

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Marsha Goodman's Prosecutorial Discretion in Japan, with its thoroughly researched description of the manner in which that discretion is exercised-including several new case studies-is an important addition to English-language literature on the Japanese legal system and raises numerous interesting issues regarding the Japanese criminal justice system.

Goodman focuses much of her attention on the lengthy battle over the abuse of prosecutorial discretion doctrine in Japan. This discussion provides a fine example of a classic pattern of legal debate in Japan. As in this case, defense counsel familiar with an issue frequently initiate movements for change in criminal procedure standards …

Compelling Testimony In Alaska: The Coming Rejection Of Use And Derivative Use Immunity, Jeff M. Feldman

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Until 1972, when the Supreme Court upheld a federal use andderivative use immunity statute in Kastigar v. United States, virtually every court that considered the issue of the compulsion of testimony favored transactional immunity. It appears that most courts interpreted the Supreme Court's 1892 decision in Counselman v. Hitchcock as finding only transactional immunity constitutional. Since Kastigar, the Alaska Supreme Court has had several opportunities totake sides in the debate over the grant of immunity constitutionally required to compel testimony. On each such occasion, the court has expressed a preference for transactional immunity, but has carefullyavoided resolving the …

Introduction: Trends And Developments With Respect To That Amendment 'Central To Enjoyment Of Other Guarantees Of The Bill Of Rights', Yale Kamisar

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Seventy years ago, in the famous Weeks case,' the Supreme Court evoked a storm of controversy by promulgating the federal exclusionary rule. When, a half-century later, in the landmark Mapp case,2 the Court extended the Weeks rule to state criminal proceedings, at least one experienced observer assumed that the controversy "today finds its end." 3 But as we all know now, Mapp only intensified the controversy. Indeed, in recent years spirited debates over proposals to modify the exclusionary rule or to scrap it entirely have filled the air - and the law reviews.'

The Felony-Murder Rule: A Doctrine At Constitutional Crossroads, Nelson E. Roth, Scott E. Sundby

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No abstract provided.

Gates, 'Probable Cause', 'Good Faith', And Beyond, Yale Kamisar

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Illinois v. Gates1 was the most eagerly awaited constitutional-criminal procedure case of the 1982 Term. I think it fair to say, however, that it was awaited a good deal more eagerly by law enforcement officials and the Americans for Effective Law Enforcement than by defense lawyers and the American Civil Liberties Union. As it turned out, of course, the Gates Court, to the disappointment of many, did not reach the question whether the exclusionary rule in search and seizure cases should be modified so as not to require the exclusion of evidence obtained in violation of the fourth amendment when …

Taking Witherspoon Seriously: The Search For Death-Qualified Jurors, Eric Schnapper

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This Article assesses, in light of fifteen years of judicial experience under Witherspoon v. Illinois, 391 U.S. 510 (1968), the meaning and impact of that decision and the practical and legal problems that arise in its application. The analysis draws heavily on actual voir dires reported in published opinions and considers the problems that judges and attorneys face when attempting to distinguish jurors who cannot be excluded under Witherspoon(commonly referred to as "death-qualified" jurors) from jurors who may be excluded for cause. Part II discusses the ways in which Witherspoon altered the law regarding jury selection in capital …

Transfer Taxation Without Transfer: Reflections On Employer-Provided Death Benefits, Section 2039, Disclaimers, New Forms Of Wealth, And The Evolution Of The Federal Estate Tax, Edward A. Zelinsky

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No abstract provided.

Does (Did) (Should) The Exclusionary Rule Rest On A 'Principled Basis' Rather Than An 'Empirical Proposition'?, Yale Kamisar

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[U]ntil the [exclusionary rule] rests on a principled basis rather than an empirical proposition, [the rule] will remain in a state of unstable equilibrium. Mapp v. Ohio, which overruled the then twelve-year-old Wolf case and imposed the fourth amendment exclusionary rule (the Weeks doctrine) on the states as a matter of fourteenth amendment due process, seemed to mark the end of an era. Concurring in Mapp, Justice Douglas recalled that Wolf had evoked "a storm of constitutional controversy which only today finds its end."' But in the two decades since Justice Douglas made this observation, the storm of controversy has …

Towards Neutral Principles In The Administration Of Criminal Justice: A Critique Of Supreme Court Decisions Sanctioning The Plea Bargaining Process, Malvina Halberstam

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This article compares the Court's reasoning in plea bargaining cases with its reasoning in non-plea-bargaining cases that involve the same legal principles. It analyzes the Court's arguments for sustaining guilty pleas induced by fear of the death penalty or by promises of leniency, and for sanctioning the imposition of harsher penalties on those who reject prosecutional offers to plead and insist on a trial. Finally, it briefly addresses the contention that the system for the administration of criminal justice in the United States could not function if use of a sentencing differential to induce guilty pleas were prohibited.

Search And Seizure Of America: The Case For Keeping The Exclusionary Rule, Yale Kamisar

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Twenty years ago, concurring in Mapp v. Ohio (1961), Justice William 0. Douglas looked back on Wolf v. Colorado (1949) (which had held that the Fourth Amendment's substantive protection against "unreasonable search and seizure" was binding on the states through the due process clause, but that the Fourth Amendment exclusionary rule was not) and recalled that the Wolf case had evoked "a storm of controversy which only today finds its end." But, of course, in the twenty years since Justice Douglas made that observation the storm of controversy has only intensified, and it has engulfed the exclusionary rule in federal …

On Recognizing Variations In State Criminal Procedure, Jerold H. Israel

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Everyone recognizes that the laws governing criminal procedure vary somewhat from state to state. There is often a tendency, however, to underestimate the degree of diversity that exists. Even some of the most experienced practitioners believe that aside from variations on some minor matters, such as the number of peremptory challenges granted, and variation on a few major items, such as the use of the grand jury, the basic legal standards governing most procedures are approximately the same in a large majority of states. I have seen varied evidence of this misconception in practitioner discussions of law reform proposals, particularly …

The Fifth Amendment, Self-Incrimination, And Foreign Prosecution: The Saga Of The Ryuyo Maru, Jeff M. Feldman

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In 1979, the M/V Ryuyo Maru No. 2, a Japanese fishing vessel, went aground off the coast of Alaska. During the course ofthe United States Coast Guard's investigation into the cause of themarine casualty, the captain of the vessel and several seamen attempted to avoid giving testimony at the Coast Guard inquest onthe ground that their testimony would tend to incriminate the munder the law of Japan. The ensuing litigation' over the extent towhich the fifth amendment protects witnesses from compulsory self-incrimination where the sole threat of criminal prosecution is by a foreign government contributes to a recent line of …

Testimonial Immunity And The Privilege Against Self-Incrimination: A Study In Isomorphism, Peter Lushing

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This Article accepts and will develop the Court's isomorphic theory of immunity and privilege, and will show why Portash is nonetheless correct in result. A case for a broadened view of the privilege, partially because of the availability of testimonial immunity, will be made. Apftlbaum will be shown to be incorrect in result. This Article will also analyze the problem of immunized testimony and perjury by inconsistent statement, a problem faced once by the Court but left unresolved. Finally, this Article will discuss the constitutional requirements of an immunity statute, and consider an immunity case presently pending before the Supreme …

A Right To Every Woman's Evidence, Richard O. Lempert

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I am indeed honored to be here with you today, honored to be joining you next year as Iowa's first Mason Ladd Visiting Distinguished Professor of Law, and honored to be giving the first Mason Ladd Lecture. The honor lies not just in the recognition you accord me, but also in the linkage to the man in whose name this recognition is given.

Criminal Procedure In Alaska, Jeff M. Feldman

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Two years ago this review published an article which reviewed search and seizure law in Alaska. Because the local barand bench seem to have found that article to be useful, it appeared worthwhile to put together a similar review of the remainder of Alaska's law of criminal procedure. Like its predecessor, this article will review and analyze the law of criminal procedure in Alaska, isolating those areas in which the Alaska Legislature or the Alaska Supreme Court has departed from the prevailing approach to procedure in criminal cases and predicting probable outcomes to procedural issues still unresolved in Alaska.

The Exclusionary Rule In Historical Perspective: The Struggle To Make The Fourth Amendment More Than 'An Empty Blessing', Yale Kamisar

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In the 65 years since the Supreme Court adopted the exclusionary rule, few critics have attacked it with as much vigor and on as many fronts as did Judge Malcolm Wilkey in his recent Judicature article, "The exclusionary rule: why suppress valid evidence?" (November 1978).